Constitutional_Counselor

Comment history

First, the appeals court overturned the district court's conclusion that Marbut lacked standing to sue. This key determination means that, in fact, the appeals court understood what the district court didn't, namely that being forced to have a federal weapons manufacturing license imposes a cognizable economic burden that is special and particular to Marbut. THE DISTRICT COURT GOT THIS ELEMENTARY LEGAL QUESTION WRONG>

Second, Marbut candidly acknowledged in his appeal brief that the 9th Circuit's hands were tied by its own prior precedent and prior decisions of the Supreme Court. In doing so, he communicated his understanding of the legal status of the Commerce Clause decisions of the Supreme Court and, at the same time, strongly signaled intentions to take this matter to the Supreme Court. Here's the specific language from Marbut's appeal brief:

"Appellants realize that in many respects, as regards the arguments so far made, the Court’s hands are tied.Appellants advocate for the case law being overturned, and an intermediate scrutiny test being applied.But the relevant case law has been promulgated by the Supreme Court, whose decision are controlling. See e.g., United States v. Stewart, 451 F.3d 1071, 1076 (9th Cir. 2006).Thus, even if the Court agrees with the reasoning, there are few remedies the Court is able to offer. One, however, would be to limit Raich to its facts, and distinguish it on grounds of its national defense implications."

Thus, Marbut has properly and squarely set up his case for review at the Supreme Court. Of course getting review there is no simple matter. But the commenters here that make this business out as the stuff of simpletons pushing water up hill are, by my read of things, uninformed.